Appellee brought this action against appellants Richard Schillinger and Charles Marvel to recover damages alleged to have resulted from their negligence, carelessness and unskilfulness as physicians and surgeons, in setting, adjusting and treating a fracture of appellee’s left femur. Trial was had by jury, resulting in a verdict and judgment in favor of appellee for $2,000, from which this appeal is prosecuted.
Appellants assign as errors herein: (1) The overruling of their demurrer to the complaint; (2) that the complaint does not state facts sufficient to constitute a cause of action; and (3) the overruling of their motion for new trial. It is contended by appellants that the complaint does not show that the negligence charged against them is the proximate cause of appellee’s alleged injury; that no allegation iá made showing that the alleged negligence was the result of the violation of any duty owing by appellants to appellee and that appellants were employed by appellee to treat this fracture.
1. Upon the points suggested by appellants the complaint, in substance, alleges that appellants were practicing physicians and surgeons, “actively engaged in the practice of such profession”; that they “held themselves out to the public as practicing physicians and surgeons”; that they as “physicians and surgeons, working together, endeavored to
2. The complaint does not expressly allege the employment of appellants by appellee, but it does contain the allegations above referred to, which, taken as a whole, state that appellants, under the circumstances stated, undertook to treat appellee’s injury as skilful and competent physicians and surgeons should do; that appellee reposed full faith and confidence in them as physicians and surgeons, and fully relied upon the knowledge and skill which they possessed, or should have possessed as such physicians and surgeons, and fully, carefully and explicitly carried out and performed those acts and things which they counselled, instructed and advised him to do. Thus a relationship came into existence between appellants and appellee, which imposed upon the former the duty to exercise the average degree of skill possessed and exercised in like cases by members of their profession practicing in similar localities; and out of such relationship grows an obligation in favor of the patient, if injured by a failure to exercise said degree of skill and care. Adolay v. Miller (1915), 60 Ind. App. 656, 659, 111 N. E. 313; Longfellow v. Vernon (1914), 57 Ind.
Under'the motion for new trial it is contended that: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; and (3) the court erred in giving and refusing to give certain designated instructions. Appellants contend under the first and second causes for new trial that there was no evidence whatever, offered or heard, of skill or knowledge on the part of appellants, but that all the evidence heard related to the alleged failure of appellants to exercise the degree of skill and knowledge which they should exercise under the circumstances.
3. The record shows evidence tending to support the cause of action alleged. It is also true that a considerable amount of the evidence tends to support the contention of the defendants, but there is, however, a strong conflict in the evidence, and these matters were submitted to, and passed upon, by the jury. This court cannot weigh the conflicting evidence, and, as there is some evidence to sustain the verdict, appellants’ contention must fail. Indianapolis Traction, etc., Co. v. Miller (1912), 179 Ind. 182, 184, 100 N. E. 449. The verdict is in accordance with the principles of law which should govern the cause as applied to. the facts which the jury was called upon to try, unless the court in its instructions misdirected the jury, or failed to direct the jury, as to such principles of law.
Appellants under their points and authorities contend that the court erred in refusing to instruct the jury that under the law the appellants were presumed to have used and exercised reasonable care and skill in setting and treating appellee’s fracture.
There being no reversible error; the judgment is affirmed.
Note. — Reported in 115 N. E. 321. Physicians and surgeons: (a) degree of care required, 37 L. R. A. 830, L. R. A. 1915 C 595, 14 Ann. Cas. 605; (b) actions against, burden of proof as to want of skill, 93 Am. St. 663. See under (1) 30 Cyc 1583; (4) 30 Cyc 1588, 1589.